By the Court.—Respondent No. 5-appellant, aggrieved by order dated 29.6.2009 passed by a learned Single Judge in Civil Misc. Writ Petition No. 4380 of 2007, has preferred this special appeal under Rule 5 Chapter VIII of the Allahabad High Court Rules.

2. Shorn of unnecessary details, the facts giving rise to the present appeal are that the writ petitioner-respondent No. 5, is a Class-IV employee of Moti Lal Nehru Smarak Inter College (hereinafter referred to as ‘the College’), which receives grant-in-aid. On 28.2.2003, a vacancy of Clerk in the College occurred due to the retirement of the incumbent. There are three posts of Clerks including the post of Head Clerk out of which two are occupied by the members of the General category.

3. Regulation 2 of Chapter III of the Regulations made in exercise of the power under Section 16-G of the U.P. Intermediate Education Act, 1921, inter alia, provides that 50% of the sanctioned posts of Head Clerk and Clerk shall be filled up by promotion from Class IV employees. Undisputedly, respondent No. 5 does not belong to the reserved category. As no candidate of the Scheduled Caste was available, the District Inspector of Schools by order dated 15.4.2005 took a decision to fill up the post by direct recruitment from amongst the members of the Scheduled Caste and in the light of the aforesaid, an advertisement was published in the Newspaper. The appellant, herein, who happens to be a member of the Scheduled Caste, offered his candidature and was selected for the appointment. After the said selection, matter is under consideration of the Regional Committee.

4. Writ petitioner-respondent No. 5, herein, filed a writ application, inter alia, praying for a direction for his promotion to the post of Clerk. Said writ application was registered as Civil Misc. Writ Petition No. 69585 of 2005 (Vinod Kumar Singh v. District Inspector of Schools and others) and by order dated 9.11.2006, this writ application was disposed of with a direction to consider his claim. In the light of the aforesaid order, the District Inspector of Schools, considered his claim and by order dated 4.12.2006, rejected his representation. He challenged the aforesaid order in the writ application, which has given rise to the present appeal.

5. It was contended before the learned Single Judge that in view of Regulation 2 (2) of Chapter III of the Regulations, 50% of Class III post is to be filled up by promotion and filling up the said post by direct recruitment in the light of the Government Order dated 18.12.1990 is illegal. The aforesaid submission found favour with the learned Single Judge and the learned Single Judge has held that in view of the aforesaid Regulation, 50% of the posts have to be filled up by promotion and the same cannot be filled up by direct recruitment. The observation of the learned Single Judge in this connection reads as follows :

“It is not in dispute that the third vacant Class III post was required to be filled up by promotion in accordance with Regulation 2 (2) contained in Chapter III of the Act. What is, however, contended by the respondents is that this vacant post should be filled up by a Scheduled Caste candidate and since no Scheduled Caste candidate was available, the said post was required to be filled by direct recruitment. Regulation 2 (2) contained in Chapter III of the Act clearly provides that 50% of the Class III posts have to be filled up by promotion and indeed even the respondents do not dispute this position. The Government Order dated 18th December, 1990 which has been referred in the impugned order has not been filed either by the State or by the contesting respondents and nor was it produced before the Court at the time of hearing of the petition. Even otherwise, it is not possible to accept the contention advanced by respondents as under the relevant Regulation 2 (2) contained in Chapter III of the Act at least one post has necessarily to be filled up by promotion and if this i